Panvasive Surveillance, Political Process Theory, and the Nondelegation Doctrine

Using the rise of the surveillance state as its springboard, this Article makes a new case for the application of administrative law principles to law enforcement. It goes beyond asserting, as scholars of the 1970s did, that law enforce- ment should develop the types of rules that govern other executive agencies, by showing how the imperative of administrative regulation flows from a version of John Hart Ely’s political process theory and principles derived from the closely associated nondelegation doctrine. Part I introduces the notion of panvasive law enforcement—large-scale police actions that are not based on individualized suspicion—and exposes the incoherence of the Supreme Court’s “special needs” treatment of panvasive investigative techniques under the Fourth Amendment. It then contrasts the Court’s jurisprudence, and the variations of it proposed by scholars, to the representation-reinforcing alternative suggested by Ely’s work, which would require that panvasive searches and seizures be approved by a body that is representative of the affected group and be applied evenly. Part II explores the impact of political process theory on panvasive surveillance that is not considered a search or seizure, using fusion centers, camera surveillance, drone flights, and the NSA’s metadata program as examples. Part III mines current administrative law principles to show how the rationale underlying the nondelegation doctrine—if not the (supposedly moribund) doctrine itself—can help ensure that the values of representative democracy and transparency are maintained even once control over panvasive surveillance is largely ceded to the executive branch.